In Lester v. New York State Office of Parks, Recreation & Historic Pres., No. 10863/09, 2016 WL 2338530 (N.Y. App. Div. 2nd Dept. May 5, 2016), the court held that the lower court should not have dismissed plaintiff’s age discrimination claim on summary judgment.
Here are the facts, as summarized by the court:
[P]laintiff worked for many years as a seasonal lifeguard at Jones Beach State Park, which is a part of the defendant’s park system. In 2007, at age 57, the plaintiff was not permitted by the defendant to take his lifeguard rehire test while wearing a “jammer,” or bicycle-short style swimsuit, rather than his state-issued lifeguard uniform. The following year, in June 2008, the then 58–year–old plaintiff attempted to take the new hire lifeguard test while wearing the same type of “jammer” swimsuit he had worn the year before. The plaintiff was not allowed to participate in the new hire examination while wearing a “jammer” since it was not similar to any of the three types of swimsuits issued by the defendant as a lifeguard uniform. Prior to 2007, the defendant did not place restrictions on the type of swimsuit a candidate could wear while taking either the new hire or rehire lifeguard test.
In holding that plaintiff’s complaint should not have been dismissed, the court explained:
To prevail on a motion for summary judgment in a discriminatory employment action, a defendant must demonstrate either the plaintiff’s failure to establish every element of intentional discrimination, or, having offered legitimate, nondiscriminatory reasons for their challenged actions, the absence of a material issue of fact as to whether [its] explanations were pretextual. Here, the defendant failed to meet its initial burden on that branch of its motion which was for summary judgment dismissing so much of the first cause of action as alleged employment discrimination based on age. The defendant failed to eliminate all triable issues of fact as to whether it had legitimate, nondiscriminatory reasons for refusing to allow the plaintiff to take the test for new hires in a “jammer” swimsuit. … Accordingly, the Supreme Court improperly granted that branch of the defendant’s motion which was for summary judgment dismissing so much of the first cause of action as alleged employment discrimination based on age.
The court therefore modified the lower court’s order granting defendant’s motion for summary judgment (but held that it properly denied plaintiff’s cross-motion for summary judgment).